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June 29, 2012

Health Care and the Commerce Clause

A friend asked me, in all sincerity, how I plan to teach National Federation of Independent Business v. Sebelius—the Health Care Cases—in my constitutional law class next spring. It’s a good question. Chief Justice Roberts’s opinion discusses and alters commerce and spending clause doctrine and elaborates on the taxing power—the case could be its own course in Congressional authority under Article I of the Constitution. (My friend also said she’s still trying to figure out whether Roberts actually called balls and strikes in Sebelius or “if he took the ball away from the pitcher and told everyone to go home because the game was over”).

What may pose the greater challenge is how to incorporate into discussion of the constitutionality of the Affordable Care Act’s individual mandate some sense of the decision’s political dimensions. Democrats have praised the decision and commentators have expressed respect for the Chief Justice’s decision to side with the so-called liberal justices. But at a certain level his decision appears motivated less by fidelity to constitutional principles than a desire to protect the integrity of an institution—the U.S. Supreme Court—that has surprisingly often in the past decade paid slight deference to the work of the elected and politically accountable branches of the federal government.

Indeed, as my colleague Louis Schulze has noted, in this case there were five votes for the proposition that an individual decision to freeload when it comes to health care, which has a demonstrable—and profound—impact on interstate commerce, is somehow not activity within Congress’s reach. This conclusion, as Justice Ruth Bader Ginsburg notes in her opinion in Sebelius, is hardly self-evident in light of the Court’s commerce clause precedents, and it arguably fails to respect the legislature’s competence to make judgments about the aggregate effect of economic decision-making. Given that, as one appeals court judge noted, “it is possible to restate most actions as corresponding inactions with the same effect,” the Court’s new activity-inactivity distinction may simply be an invitation to judges to engage in subjective assessments about the validity of a wide range of federal regulations.

As discussion begins about the long-term implications of this new commerce clause principle, it would be good to remember that experiments with formalistic constitutional doctrines that effectively cabin the federal government’s ability to regulate have been relatively short-lived. For instance, in the 1995 case United States v. Lopez, the Court held that Congress can only regulate activity that is inherently economic under the commerce clause—and then ten years later concluded in Gonzales v. Raich that Congress may regulate even non-economic activity when it is part of a broad effort to regulate a national market, effectively embracing a means by which Congress can get around Lopez. The Court may soon discover that in order for the federal government to address some of the truly national problems the country now faces, it will have to develop a way for Congress to get around its new activity-inactivity distinction, too.

Lawrence Friedman

June 28, 2012

The Health Care Cases: “Democrats Win the Battle, but Lose the War … and Don’t Even Seem to Know it Yet” or “How Chief Justice Roberts Got to Have his Cake and Eat it, Too"

I’m baffled by the reaction to today’s ruling in National Federation of Independent Businesses v. Sebelius (which is quickly attaining the nickname “The Health Care Cases.”).  Democrats seem to be rejoicing “a win,” in that the Affordable Care Act was upheld.  What everyone seems to be ignoring is the fact that the Court also held that:  (a) Congress lacked the power to enact the individual mandate under the Commerce Clause; and (b) it also lacks the power under the Spending Clause to withhold Medicare funding to states who refuse to participate in the Medicare expansion.  In crowing about this “victory” for the President, I honestly don’t think that Democrats have quite figured out the long-term consequences of what Chief Justice Roberts just pulled off today.  But, know this:  his feat today is downright historic…

Most people probably don’t care about the Commerce Clause or the Spending Clause.  These were just some words of jargon that lawyers were throwing around, and what people really cared about was whether Obamacare would still exist.  The elation to be heard outside the Supreme Court building seems to confirm this, and even the commentary by talk radio pundits in the first hours after the decision seemed to focus only on the survival of the ACA.  What folks are missing is the fact that the Supreme Court just fundamentally altered (or put back into place, depending upon where you’re standing) the balance of power between states and the federal government.

To be clear, the Commerce Clause is the source of power for the vast majority of federal social legislation.  Georgetown Constitutional Law Professor Randy Barnett, the architect of the challenge to the ACA and longtime advocate for curtailing federal power has stated that the original meaning of Congress’s power under the Commerce Clause is that it only extends to “trade in things – goods” and that it merely creates a free-trade zone among the states with Congress regulating matters within the stream of commerce.  Barnett’s theory on the ACA is that even if insurance can be deemed a “good,” it still is beyond the reach of the Commerce Clause because the individual mandate compels citizens to enter into commerce rather than merely regulating what is already in it.  By seemingly agreeing with this theory today, the Supreme Court arguably calls into question such fundamental social reforms as the Civil Rights Act, workplace safety laws, and minimum wage laws … and yet Democrats are celebrating.

Despite the impact of today’s ruling on the Commerce Clause, Democrats seem just about ready to canonize Chief Justice Roberts, given that he – and not Justice Kennedy, as had been widely expected – provided the swing vote for saving the ACA.  Little to do they know, apparently, that what the Chief Justice pulled off today was nothing short of a masterstroke.  As a longtime advocate of a conservative approach to interpreting the constitution, the Chief Justice no doubt seeks to reinforce the power dynamic between the states and the federal government.  As a former law clerk to then-Associate Justice Rehnquist, he no doubt relishes the opportunity to complete the federalism revolution his former boss started.  At the same time, though, Chief Justice Roberts also appreciates the impact of the Court’s actions on its legitimacy and has openly strived to avoid closely-divided or blatantly partisan rulings from the Court.

Today, he somehow was able to achieve those two seemingly incompatible results simultaneously.  By narrowing the Commerce Clause, he has substantially undermined the federal government’s power to involve itself in citizen’s lives; but, by casting the deciding vote to uphold the ACA’s individual mandate as a permissible “tax,” he achieves the pragmatic goal of deferring to one of the elected branches of government and showing that the Court is still above politics.  He literally got to have his cake and eat it, too, and it shouldn’t be too long until the cognoscenti begin to recognize the sage brilliance of this maneuvering.

So, for now, Democrats are celebrating.  Hopefully, the Affordable Care Act will work as advertised and provide health insurance to millions of people who otherwise would have suffered.  But, in the not too distant future, we will certainly have to reckon with the real results of today’s decision:  “The New Commerce Clause.”  Whether that occurs when the Supreme Court invalidates some crucial social policy or whether it occurs when Congress is too timid to legislate, one thing is certain: Chief Justice John Roberts will be in the SCOTUS Hall of Fame, because this guy just pulled off the Kobayashi Maru of constitutional adjudication.

Louis Schulze

June 4, 2012

The Constitution, Congress, and the Repeal Amendment

When Congress acts pursuant to its enumerated powers and does not infringe upon an individual right or liberty, the U.S. Supreme Court has traditionally treated the legislation with deference. This approach lately has come under fire. Randy E. Barnett, who teaches constitutional law at Georgetown, has endorsed the enactment of the so-called “repeal amendment” – an amendment to the Constitution which would provide for the repeal of a particular federal law or regulation “when the legislatures of two-thirds of the several states approve resolutions” favoring the same.

Such an amendment is contrary to the intentions of the framers as reflected in the text and structure of the Constitution itself. They met in Philadelphia in 1787 to address the inadequacies of government under the Articles of Confederation, finally recognizing that, in order for the young nation to move forward – for its economy to thrive, for its borders to be protected, for its people to be secure in the world – it needed a government to both represent and speak for all citizens – a government of the United States, supreme by design in matters of national policy both domestic and foreign. 

By subjecting every national policy to review by the people acting through their state legislatures, the repeal amendment would threaten the most vital aspects of the governmental plan adopted by the framers. As my late colleague George Dargo put it, “[t]o provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.”

Of course, altering the architecture of the American government is the point of the repeal amendment. Which begs the question whether our constitutional architecture, as understood by the Supreme Court, has truly failed us.  Proponents of the amendment assert that the federal government is out of control – an assertion that assumes the federal government is divorced from the people it serves. Indeed, Professor Barnett has argued, in the context of the challenge to the Patient Protection and Affordable Care Act, that, “[i]f Congress can mandate that citizens do anything that is convenient to its regulation of the national economy,” then sovereignty lies with the federal government rather than the people and “Congress has the prerogative powers of King George III.”

But that is not right: unlike an unelected king, Congress is not an entity separate from the people – it is the people. And if the people don’t like the individual mandate, or indeed any federal policy, they have ample means at their disposal to make that view known to their congressional representatives, as indeed many have since the Affordable Care Act became law.

The people, moreover, cannot reliably be expected to enforce the Constitution. When the Court reviews a Congressional enactment, it is engaged in the process of determining the law’s constitutional validity, a process dictated by established doctrines that describe the boundaries of acceptable Congressional action and at the same time respect the limits of the judiciary’s institutional role in our governmental system. These doctrines serve to direct and constrain judicial discretion, to push judges to exercise legal rather than political or emotional judgments about the action Congress has taken.

The repeal amendment, by contrast, invites the exercise of political and emotional judgments. People will favor the repeal of particular federal policies simply because they don’t like those laws. State legislative resolutions favoring repeal accordingly will be the result of passion, not reasoned judgment about the national policies Congress is constitutionally authorized to pursue.

In the end, then, proponents of the repeal amendment seek to achieve political and not necessarily constitutional goals. Luckily for them, we already have at hand the means through which we can control our representatives in Congress, and thereby control the reach of the federal government: they are called elections, every two years for Representatives, every six for Senators.

Lawrence Friedman